Gizmo Realty/VKR Assoc., LLC Act 250 Permit ( 2008 )

STATE OF VERMONT
ENVIRONMENTAL COURT
}
In re: Gizmo Realty/VKR Associates, LLC } Docket No. 199-9-07 Vtec
(Appeal of Act 250 Permit #3R0990) }
}
Decision on Cross-Motions for Summary Judgment
Appellant Two Rivers-Ottauquechee Regional Planning Commission appeals an August
15, 2007 decision of the District #3 Environmental Commission approving the Act 250 permit
application of Gizmo Realty Holdings I, LLC (“Gizmo”) and VKR Associates, LLC (“VKR”) for
the development of five commercial buildings on a parcel of land located in the Town of Bradford.
Two Rivers-Ottauquechee Regional Planning Commission (“Two Rivers”) is represented by
Amanda S.E. Lafferty, Esq. Applicant Gizmo Realty Holdings I, LLC is represented by John C.
Candon, Esq.
Two Rivers appealed the Commission’s conclusion that the proposed development
satisfies Act 250 Criterion 10. See 10 V.S.A. § 6086(a)(10) (requiring conformance with duly
adopted local or regional plan). To this end, Two Rivers’ Statement of Questions asks three
related questions: first, whether the project under consideration will have a substantial regional
impact; second, whether the regional plan should be given effect in the consideration of the
project; and third, whether the project conforms to the regional plan. Both Gizmo and Two Rivers
have moved for summary judgment.
Factual Background
Unless otherwise noted, the parties have not disputed the following material facts.
1. Gizmo and VKR applied for a land use permit for a commercial project to be called the
“Bradford Square Shopping Center.” The project would be located on a 5.73-acre lot located in
Bradford on the easterly side of U.S Route 5, which is also known in this area as Lower Plains
Road.
2. The project proposes five buildings of varying sizes: 17,000 square feet, 9,100 square feet,
8,000 square feet, 7,200 square feet, and 3,500 square feet. At least one building would be used as
a grocery store and another would be used as a dry goods store.
3. The project property contains 4.5± acres of primary agricultural soils that would be
impacted by the project.
4. Gizmo applied for a municipal zoning permit to construct its shopping center with retail
and commercial stores at the project site on February 23, 2007. Gizmo’s Ex. 2. This zoning
application was approved on May 15, 2007.1 Id.
5. On or about June 12, 2007, Gizmo and VKR Associates, LLC applied to the District #3
Environmental Commission (“Commission”) for a commercial development. Two River’s
Statement of Undisputed Facts at ¶ 2; Gizmo’s Reply at ¶ 2.
6. In its August 15, 2007 decision, the Commission determined that the Municipal Plan and
the Regional Plan were in conflict regarding this project. The Commission concluded that the
Municipal Plan allowed intensive commercial development in the area where the project is
proposed to be developed while the Regional Plan designated the same area as a “Rural Area.”
See District Commission Decision at 4-5 (a copy of which was submitted as Two Rivers’ Exhibit
F; this Decision is hereinafter referred to as the “August 15 Decision”). We have been presented
with copies of the Two Rivers-Ottauquechee Regional Plan adopted on May 30, 2007 and made
effective on July 4, 2007 (“2007 Regional Plan”, a copy of which is contained in Two Rivers’
Exhibit A) and the applicable Bradford Municipal Plan, adopted February 18, 2003 (“Municipal
Plan”, a copy of which is contained in Two Rivers’ Exhibit D).
7. The proposed development is adjacent to, but not part of an area designated in the 2007
Regional Plan as the “Interchange Area” which is associated with Exit 16 to Interstate 91. Under a
previous regional plan, the project site is within an area designated as the “Interchange Growth
Area.”
8. Because it concluded that the two plans were in conflict, the Commission analyzed the
effect of the conflict by evaluating whether the proposed project would have a “substantial
regional impact.” August 15 Decision at 5. The Commission concluded that the project would
not have a substantial regional impact.
9. Based upon its conclusion that the project would not have a substantial regional impact,
and based upon its conclusion that the proposed project did not offend the Municipal Plan, the
Commission concluded that the proposed project satisfied the requirements of Act 250 Criterion
1
The zoning application contains references to a “Planning Commission Decision” issued the day the application was
approved, but the record before us does not contain that decision or any of the other application materials listed as
attachments on the municipal application.
-2-
10 (10 V.S.A. § 6086(a)(10)). Two Rivers thereafter filed a timely appeal of the August 15
Decision with this Court.
Discussion
As the parties have both noted in their briefs, summary judgment is only appropriate when
the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits . . . show that there is no genuine issue as to any material fact and that any party is
entitled to a judgment as a matter of law.” V.R.C.P. 56(c)(3). When both parties seek summary
judgment, “each must be given the benefit of all reasonable doubts and inferences when the
opposing party’s motion is being evaluated.” DeBartolo v. Underwriters at Lloyd’s of London,
2007 VT 31, ¶ 8. In any de novo appeal to this Court, we are directed to apply the substantive
standards that were applicable before the tribunal that rendered the decision now under appeal;
these substantive standards will guide our assessment of which facts are material. 10 V.S.A. §
8504(h), V.R.E.C.P. 5(g); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)
(“As to materiality, the substantive law will identify which facts are material”).
Before an Act 250 permit is granted, an applicant must demonstrate that its project “[i]s in
conformance with any duly adopted local or regional plan . . . .” 10 V.S.A. §§ 6086(a)(10),
6088(a); accord Appeal of Rivers Development, LLC, Docket Nos. 7-1-05 Vtec and 68-3-07 Vtec
slip op. at 9 (Vt. Envtl. Ct. Jan. 18, 2008). In situations where both a municipal plan and a
regional plan are relevant to the determination of any issue in Act 250 proceedings, we have
statutory guidance to determine whether the provisions of the regional or municipal plan ought to
be given effect. 24 V.S.A. § 4348(h). We are directed to give effect to the provisions of the
regional plan “to the extent that they are not in conflict with the provisions of a duly adopted
municipal plan.” Id. § 4348(h)(1). However, when the plans do conflict, “the regional plan shall
[only] be given effect if it is demonstrated that the project under consideration in the proceedings
would have a substantial regional impact.” Id. § 4348(h)(2); see also In re Green Peak Estates,
154 Vt. 363, 367-68 (1990) (explaining the effect of § 4348).
The first two questions in Two Rivers’ Statement of Questions presuppose a conflict
between the Municipal Plan and the Regional Plan. However, Gizmo suggests instead that there is
no conflict between the Municipal Plan and the applicable Regional Plan. Gizmo’s assertion on
this point is premised upon Gizmo’s belief that the Commission acted incorrectly in applying the
2007 Regional Plan to its application. Gizmo contends that the applicable regional plan is not the
-3-
2007 Regional Plan, but the regional plan that preceded it. Thus, the parties have presented us
with a threshold question of which version of the Regional Plan is applicable to the pending
application. See generally Gizmo’s Ex. 3 (containing a portion of the Two Rivers-Ottauquechee
Regional Commission Regional Plan that became effective on July 30, 2003 and thereafter was
superseded by amendment that became effective on July 4, 2007. We hereinafter refer to the
predecessor plan as the “2003 Regional Plan”).
Two Rivers opposes consideration of this threshold question, asserting that Gizmo did not
properly preserve the question of which regional plan is applicable for our consideration on
appeal. “Generally, in civil [appeal] proceedings, issues not raised below are waived.” State v.
Decoteau, 2007 VT 94, ¶ 11. However, this is a de novo appeal. 10 V.S.A. § 8504(h), V.R.E.C.P.
5(g). In this de novo appeal, our role is to “hold a de novo hearing on those issues which have
been appealed.” 10 V.S.A. § 8504(h). A de novo hearing contemplates an entire trial similar to
the proceedings from which the appeal arose. State v. Madison, 163 Vt. 360, 370 (1995). As we
have explained, our “basic obligation” in appeals under § 8504(h) is to “apply anew the
substantive legal standards” that were applicable before the tribunal appealed from, “as though no
prior action had been taken [on the appealed issues].” In re: Unified Buddhist Church, Inc.
Indirect Discharge Permit, Docket No. 253-10-06 Vtec slip op. at 4 (Vt. Envtl. Ct. July 31, 2007),
In re: Miller Conditional Use Application, Docket No. 59-3-07 Vtec slip op. at 6 (Vt. Envtl. Ct.
Nov. 5, 2007). Thus, even though it appears undisputed that Gizmo failed to raise the issue before
the Commission below of which regional plan applies to its application, we have the authority, and
the obligation, to determine which plan should be used in assessing whether the application now
before us on appeal conforms with Act 250 Criterion 10.
In Vermont, land use rights normally vest under the version of the municipal or state land
use regulations in effect at the time a proper and complete application is submitted. See Appeal of
Rivers Development, LLC, Docket Nos. 7-1-05 Vtec and 68-3-07 Vtec slip op. at 6-7 (Vt. Envtl.
Ct. Jan. 18, 2008) (citing Smith v. Winhall Planning Comm’n, 140 Vt. 178, 181 (1981), In re
Molgano, 163 Vt. 25, 33 (1994), and Re: Burlington Broadcasters, Inc. d/b/a WIZN, et al., Docket
No. 4C1004R-EB, Memorandum of Decision on Group 2 Preliminary Issues at 6–7 (Vt. Envtl. Bd.
Nov. 25, 2003) (“Burlington Broadcasters”). However, the issue presented here, whether an
earlier or later version of a regional plan applies, has not been directly addressed by this Court or
our Supreme Court. This issue was, however, addressed by the former Environmental Board in
-4-
Burlington Broadcasters. Burlington Broadcasters at 6-9. Having reviewed that decision, we find
the Board’s reasoning persuasive and will therefore give the Board’s decision in Burlington
Broadcasters the same weight as a well-reasoned and persuasive decision from this Court. 10
V.S.A. § 8504(m).
The Burlington Broadcasters Board, finding the Molgano Court’s reasoning instructive,
specifically concluded that if an applicant diligently pursues a local zoning permit before applying
for a companion Act 250 permit for their proposed development, then the regional plan that should
apply to their Act 250 application is the plan in effect when the municipal zoning application was
submitted. See Burlington Broadcasters at 8, 11 (citing Molgano, 163 Vt. at 32-33). The
Burlington Broadcasters Board based its conclusion upon the Molgano Court’s conclusion that
where “a developer diligently pursues a proposal through the local and state permitting processes
before seeking an Act 250 permit, conformance under [Criterion 10] is to be measured with regard
to zoning laws in effect at the time of a proper zoning permit application.” Molgano, 163 Vt. at
33.
In reaching its holding, the Court relied upon In re Preseault, which held that the
intervening adoption of a municipal plan would be “ineffective to derail proceedings validly
brought and pursued in good faith to implement rights available under previous law.” See
Molgano, 163 Vt. at 32 (quoting In re Presault, 132 Vt. 471, 474 (1974)) (internal quotations
omitted). The Molgano Court also emphasized that the vesting rule is intended to give applicants
a measure of stability and certainty when applying for land use permits, and avoids giving local
planning bodies the authority to apply land development laws and policies retroactively. Id. at 31-
33.
The Burlington Broadcasters Board found the analysis in Molgano, with its emphasis on
consistency with the local development process, certainty for applicants, and the requirement of
diligent pursuit of local permits by applicants, to apply “with equal force” to the question of which
regional plan ought to apply in Act 250 proceedings. Burlington Broadcasters at 8. We agree
with the Board’s analysis. In doing so, we conclude that the pending Act 250 application should
be reviewed for conformance with the 2003 Regional Plan, as that was the Plan in effect at the
time Applicants submitted their complete zoning application to the Town.
We recognize that our conclusion here may seem disjointed, as we are recognizing a
vesting of rights that occurs before an Act 250 application is submitted. We note that a regional
-5-
plan does not necessarily stand in the same hierarchical relation to a municipal plan as a municipal
plan stands in relation to zoning or subdivision bylaws, nor is it necessarily considered during the
local permitting process. Under the Vermont Planning and Development Act, 24 V.S.A. ch. 117,
a regional plan stands in an advisory relationship with a municipal plan. See 24 V.S.A. §§ 4349(a)
(“If a regional planning commission prepares and adopts a regional plan, the regional plan or a
portion thereof may then be adopted by the legislative body of any member municipality as its
plan . . . .”) (emphasis added); § 4382(a)(8) (“A plan for a municipality may be . . . compatible
with . . . the regional plan and shall include…[a] statement indicating how the plan relates to . . .
plans for adjacent municipalities, areas and the region developed under this title”) (emphasis
added); and § 4384(e)(2) (requiring a municipality to submit its proposed plan to and solicit
comments from the executive director of the regional planning commission). By contrast, since
zoning bylaws are adopted as regulatory tools used to implement municipal plans, they are
supposed to “be in conformance with the plan[,]” and must be in accord with the municipal plan
policies. 24 V.S.A. §§ 4401, 4410.
Because a regional plan does not necessarily receive any consideration in the local
permitting process, a rigid view of these proceedings would suggest that the municipal
proceedings should not trigger a vesting of rights under a then-existing regional plan. Under such
logic, applicants generally would have no rights vest under a regional plan during the local
permitting process. Therefore, several of the policy considerations in favor of vesting would not
apply or at least would not apply until a complete Act 250 application was accepted. However,
our vested rights jurisprudence suggests we should not take such rigid approach to the vesting of
rights under regulations in effect at the time of an applicant’s first land use application.
We are counseled not to take a rigid view of the land development process. Vermont’s
vested rights jurisprudence suggests that we ought to view the development application process—
which can require several stages of local and state government permitting, conducted over many
months—as a combined process for the purpose of adjudicating the vesting of a developers’ rights.
Such a view is supported by commentators and case law precedent. “[Modern land development
has become] an intensely regulated process requiring compliance with a host of complex land use
regulations and the issuance of multiple governmental approvals prior to ground-breaking.”
Grayson P. Hanes & J. Randall Minchew, On Vested Rights to Land Use and Development, 46
Wash. & Lee L. Rev. 373, 389 (1989).
-6-
In response to regulatory conditions that are often volatile, courts have tried to delineate
the times when applicants’ reliance upon existing regulations and the right to have an application
considered under those regulations. Id. at 375-77. As discussed, Vermont generally follows the
minority vesting rule, which vests rights at the time of a proper and complete application. In re
Handy, 171 Vt. 336, 350 (2000); accord Weyerhauser v. Pierce County, 976 P.2d 1279, 1283
(Wash. Ct. App. 1999) (explaining the minority rule generally).2 Vermont’s vesting rule also
requires the “good faith” pursuit of permits, and the requirement aims to prevent would-be
developers from submitting incomplete applications in an attempt to secure rights under existing
regulations and avoid forthcoming, more stringent regulatory amendments. In re Ross, 151 Vt. 54,
57 (1989); see also In re Presault, 132 Vt. at 474 (“the intervening adoption of a master plan is, by
itself, ineffective to derail proceedings validly brought and pursued in good faith to implement
rights available under previous law.”) and In re Handy, 171 Vt. at 350 (noting the good faith
requirement for vested rights analysis in both zoning and Act 250 cases).
Because of the multi-stage nature of Vermont land use regulatory approval, a more proper
first approach to the vesting analysis may not be to look only at the commencement of the local
application process, as was the approach in Burlington Broadcasters, but first to see if the
developer’s good faith and diligence carried over to its pursuit of an Act 250 permit. There is
decisional support for this holistic view of the modern development process. Rejecting the
“essential unfairness in a rigid application” of the more stringent “permit-plus” vesting test, a test
that does not take into consideration the complex nature of today’s land use regulation, the
Delaware Supreme Court endorsed a test that looked for good faith reliance on existing standards.
In re 244.5 Acres of Land, 808 A.2d 753, 757-58 (Del. 2002).
In that case, a developer pursued the local permitting process, but during the local process,
an adjoining landowner applied to a state agency to create an agricultural preservation district on
its lands. Id. at 754. “[N]ew subdivision development” adjacent to such a district would be
subject to setback requirements greater than those imposed by the local regulations; the developer
argued that its pursuit of the local permits vested rights in the local regulations. Id. at 754. The
2
Some commentators believe that the state of vested rights law is clearly delineated, while others consider the law to
be in constant flux. Compare Gregory Overstreet & Diana M. Kirchheim, The Quest for the Best Test to Vest:
Washington’s Vested Rights Doctrine Beats the Rest, 23 Seattle U. L. Rev. 1043 (2000) (explaining that vested rights
tests may be broken into three types: majority, minority, and Washington) with David S. Warner and Emily R. Schey,
Recent Developments in Vested Rights: Maintaining the Status Quo, 39 Urb. Law. 695 (2007) (noting several
subtleties between “minority” or “complete application test” states like Vermont and North Carolina and “majority”
states).
-7-
244.5 Acres Court found that it would be inequitable “to leave an applicant to the vagaries of the
unanticipated actions of other governmental entities during the extended process required by local
authorities,” and held that the developer’s rights to the lesser setback requirements had vested. Id.
at 758. Similarly, where a developer has diligently pursued local permits in good faith, and then
has diligently pursued the applicable state land use permit, it would be unfair to subject that
developer to “the vagaries of the unanticipated actions” of other government bodies during the
local permit process. In doing so, we defer to the individual rights of developers, as well as their
desire for certainty and predictability, and against a rigidly technical view of the land use
permitting processes.
Here, Gizmo, as a co-Applicant, bears the burden of demonstrating that it pursued the local
and Act 250 permitting processes diligently. 10 V.S.A. § 6088(a); V.R.C.P. 56(c)(3). In addition,
since we are considering Gizmo’s motion for summary judgment, we will give Two Rivers the
benefit of all reasonable doubts and inferences. Kremer v. Lawyers Title Ins. Corp., 177 Vt. 553,
554, 2004 VT 91, ¶ 7. Two Rivers may not rest on bare allegations alone to meet its burden of
demonstrating a disputed material fact. Webb v. Leclair, 2007 VT 65, ¶ 14.
Gizmo applied for local permits on February 27, 2007, and it received approval for its
shopping center plans on May 15, 2007. Gizmo’s Ex. 2. Two Rivers has contested whether
Gizmo diligently sought local permits and whether its rights vested under the 2003 Regional Plan,
but has confined its argument to contending that the issue of which Regional Plan applies was not
properly preserved below for our review on appeal, a contention we have rejected. See supra,
page 4. Therefore, we are left with Gizmo’s undisputed assertion that it diligently pursued the
local permitting process, which it has supported with the approved permit application, and the
parties’ agreement that Gizmo sought an Act 250 permit on or about June 12, 2007, just one
month after it secured local permit approval. Gizmo completed the local permitting process and
then applied for an Act 250 permit. This is not a situation where the applicant hastily submitted an
application in an attempt to secure rights under a more lenient standard. See In re Ross, 151 Vt.
54, 58-59 (1989) (holding an incomplete application cannot vest rights). Nor does the record
demonstrate any dilatory action or inaction on Gizmo’s part. Therefore, we conclude that Gizmo
acted in good faith and diligently pursued its land use approvals and is thus entitled to review of
its pending Act 250 application under the 2003 Regional Plan.
-8-
We must next determine whether the 2003 Regional Plan and the Municipal Plan are both
relevant to the same issues under Criterion 10, and if so, determine whether there is any conflict
between the two. 24 V.S.A. § 4348(h), Green Peak Estates, 154 Vt. at 367-68. “Provisions of a
regional plan, like zoning ordinances, should be construed according to the ordinary rules of
statutory construction.” In re MBL Assocs., 166 Vt. 606, 607 (1997). If the language is clear, we
will follow its express terms and inquire no further. Id. However, we are directed to not give
effect to abstract statements of policy that give no specific standards for implementation or that
are, at best, ambiguous. See In re Times & Seasons, LLC, 2008 VT 7, ¶¶ 22-23 (holding that
ambiguous terms such as “where feasible” in a town plan were too abstract to enforce).
With regard to this project, and in particular this project’s proposed location, both the 2003
Regional Plan and the Municipal Plan seek to encourage commercial development in this area.
Regarding the Municipal Plan, the proposed project is location is within the “Lower Plain
Commercial” area. Gizmo’s Ex. 2. The Municipal Plan explains that “[d]evelopment in this area
should be concentrated commercial development that does not unnecessarily consume land.”
Municipal Plan at 37. The Plan encourages “[p]lanned commercial subdivisions and
developments utilizing common access roads” and “cluster site planning principles.” Id. at 38.
Regarding the 2003 Regional Plan, the Plan begins by announcing planning and
development goals, issues, and concerns for “Interchange Areas” generally, and then discusses
specific concerns for the “Bradford Interchange,” meaning the area near the I-91 interchange at
Exit 16 in Bradford. 2003 Regional Plan at 39. Generally speaking, the 2003 Regional Plan
considers interchange areas “prime areas for development due principally to their relative ease of
public access and favorable site conditions.” Id. at 36. The area in which the Gizmo project site is
located is identified in the 2003 Regional Plan as an “Interchange Growth Area”. Id.
Appropriate land uses in interchange areas may include “highway oriented lodging and
service facilities, trucking terminals, research establishments, office or business parks, and light
manufacturing facilities or similar type uses.” Id. at 38. When addressing the Bradford
Interchange, the 2003 Regional Plan contains a narrative of the existing conditions around the
interchange as well as some of the history of the area’s development, but it contains no specific
development provisions. Id. at 39-40. We conclude that the Municipal Plan and the 2003
Regional Plan do not conflict regarding the proper uses for this area. Both plans seek commercial
development in the Bradford Interchange or Lower Plains Commercial area.
-9-
We discern no conflict between the two plans regarding what types of development are
appropriate for the area that would include the proposed project. To this extent, the 2003 Regional
Plan must be given an effect equal to that given the Municipal Plan when considering whether this
project conforms with Criterion 10. 24 V.S.A. § 4348(h)(1). For this reason, because we hold that
there is no conflict between the Municipal Plan and the applicable Regional Plan, we DISMISS
Two Rivers’ Question 1 because it presupposes a conflict between the two Plans. In addition,
Gizmo’s Motion for Summary Judgment is GRANTED as to Appellant’s Question 2, since the
Question solely asks which version of the regional plan is applicable to this application.
Two Rivers’ Question 3 asks whether “the project under consideration [is] in conformance
with the [regional plan].” The record before us thus far lacks important information, such as a
complete version of the 2003 Regional Plan, Gizmo’s land use application, and other information
that would allow us to compare Gizmo’s proposed project with the 2003 Regional Plan in order to
determine whether the proposed project conforms to the Plan. While we conclude as a matter of
law that the 2003 Regional Plan and the Municipal Plan agree that this type of project is
appropriate for this area, we have yet to be presented with sufficient material facts to determine if
this particular project conforms to all of the other applicable provisions of the 2003 Regional Plan.
Without a complete version of the 2003 Regional Plan, we are unable to determine which facts
might be material to resolving Question 3. Therefore, because material facts are in dispute, or at
least have yet to be presented to the Court, both parties’ motions for summary judgment are
DENIED as to Question 3. See In re: Higgins-Jockey Lane Subdivision Final Plat, Docket No.
200-8-06 Vtec slip op. at 11 (Vt. Envtl. Ct. Sept. 28, 2007) (denying summary judgment where a
town plan, implicated by subdivision bylaws, had not be provided).
For the forgoing reasons, Appellant Two Rivers-Ottauquechee Regional Planning
Commission’s Question 1 is hereby DISMISSED. Appellee-Applicant Gizmo Realty Holdings I,
LLC’s Motion for Summary Judgment on Question 2 is GRANTED to the extent that Question 2
asks which version of the regional plan is applicable to this land use application. Lastly, both
parties’ Motions for Summary Judgment are DENIED as to Question 3, as material facts are
either in dispute or have not yet been provided to the Court.
Done at Newfane, Vermont this 30th day of April, 2008.
___________________________________
Thomas S. Durkin, Environmental Judge
- 10 -